Bills Digest No. 174 2001-02
Sex Discrimination Amendment (Pregnancy and Work) Bill
2002
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Sex Discrimination Amendment (Pregnancy
and Work) Bill 2002
Date Introduced: 14 February 2002
House: House of Representatives
Portfolio: Attorney-General
Commencement: The introductory provisions
commence on Royal Assent, and the functional parts of the
legislation commence 28 days after Royal Assent.
Purpose
To make amendments to the Sex Discrimination
Act (1984) ('the SDA' or 'the Sex Discrimination Act') which
clarify the intention of the Act.
In 1998 the Attorney-General gave a reference to
the Human Rights and Equal Opportunity Commission ( HREOC ) to
enquire into matters relating to pregnancy and work . The enquiry
was overseen by Susan Halliday, the Sex Discrimination Commissioner
from April 1998 to April 2001. The Report, delivered in June 1999,
was called Pregnant and Productive: It s a right not a
privilege to work while pregnant.(1)
The Government responded to the Report in
November 2000, some 17 months later. The response accepted roughly
half of the recommendations made. There were twelve recommendations
calling for amendments to the SDA, and of these recommendations the
Government accepted three. The Sex Discrimination Amendment
(Pregnancy and Work) Bill 2002 represents the Government s
implementation of these three recommendations.
The SDA already contains prohibitions on
discrimination on the basis of pregnancy or potential pregnancy (s.
7), and none of the amendments to be made change the substance of
the legislation, they just clarify a few issues.
During its enquiry HREOC had many submissions
which emphasised that post-pregnancy issues are central to issues
of sex discrimination. One from the Women's Electoral Lobby
said:
Pregnancy is a workplace issue that starts well
before conception and ends long after birth. It is impossible to
separate pregnancy and family responsibilities.(2)
It was a result of submissions on these issues
that HREOC recommended that the Attorney-General amend the SDA to
specifically cover breastfeeding as a ground of unlawful
discrimination.(3) The current Bill chooses a method of
implementing this recommendation that does not create a new ground
of unlawful discrimination. Instead the Bill clarifies the fact,
should it need clarification, that breastfeeding (and expressing
milk) is a characteristic of women, thereby bringing it under the
umbrella of the prohibition on sex discrimination in the Act. In
contrast to this approach taken by the Government, the private
member's Bill dealing with similar issues, introduced to the
Parliament by Ms Jenny Macklin in 2000, sought to implement HREOC's
recommendation by creating an entirely new ground of
discrimination.(4)
The Pregnant and Productive Report also
identified problems with s. 27 of the SDA in dealing with
discrimination in advertising and recruitment. The Report suggested
that a broader range of people should be able to take action
against discriminatory advertising without having to prove that
they had themselves been affected by the discriminatory
advertisement. This would clarify that bodies such as a community
legal centre of an employee representative with a concern about a
particular job advertisement that may exclude or discourage
pregnant or potentially pregnant women from applying could lodge a
complaint about such an advertisement. The current legislation does
not take up this recommendation, which was not approved in the
Government response to the Report.
The Report went on to say that:
Non-discriminatory employment selection
processes are crucial for ensuring that discrimination is
eliminated. Processes need to be transparent and fair; they should
operate so as to eliminate as far as possible any doubt about
whether discrimination actually occurred. Irrelevant questions
about pregnancy or potential pregnancy need to be removed from the
process. A clear legislative provision, and information about its
application will assist with this. (5)
The proposed legislation seeks to implement this
approach by inserting clarificatory provisions in s. 27.
There are three provisions in the Bill which
amend the SDA.
Item 1 inserts into the
definition of sex discrimination, a clarification that
breastfeeding (including expressing milk) is a characteristic that
'appertains generally to women'. This amendment does not change the
law, it is simply a clarification (should one be needed) that
discrimination against a breastfeeding women is a form of sex
discrimination.
Item 2 inserts a new
subsection 27(1) which is designed to be more transparent
in its rules regarding questions that can be put to possible
employees regarding pregnancy or potential pregnancy. Essentially
the subsection clarifies that a question regarding pregnancy or
potential pregnancy should not be put unless it falls within the
category of a general question that is asked of everyone involved
i.e. people of both sexes and of different marital status. So, for
instance, a standard question at a job interview about 'future
plans' may elicit information about a planned pregnancy from a
candidate. However, as long as this information is not taken into
account when determining who to give the job to, the posing of the
question is not necessarily wrong because it is not inherently
discriminatory.
Similarly to Item 2,
Item 3 inserts a clarificatory note to subsection
27(2) which explains that as long as a person asking a question
about someone's medical condition or pregnancy uses that
information in a legitimate way (the example given is occupational
health and safety) then the question is not discriminatory. The
subsection allows employers to ask questions about someone's
medical or pregnancy status in a manner which distinguishes between
the sexes because it may assist in the enforcement of appropriate
precautionary measures.
-
- Human Rights and Equal Opportunity Commission, Sydney, 1999.
- ibid, p. 225.
- ibid, p. 226.
- Sex Discrimination Legislation Amendment (Pregnancy and Work)
Bill 2000 [No. 2], item 10.
- Pregnant and Productive: It s a right not a privilege to
work while pregnant, Human Rights and Equal Opportunity
Commission, Sydney, 1999, p. 171.
Kirsty Magarey
24 June 2002
Bills Digest Service
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ISSN 1328-8091
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